Mehla v. U.S. Dep't of Homeland Sec.

424 F.Supp.3d 997

Mukesh MEHLA, Petitioner,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

Case No.: 19-cv-2245-WQH-BGS

United States District Court, S.D. California.

Signed December 4, 2019

Filed December 5, 2019

Bashir Ghazialam, Law Office of Bashir Ghazialam, San Diego, CA, for Petitioner.

U.S. Attorney CV, U.S. Attorneys Office, San Diego, CA, for Respondents.

ORDER

HAYES, Judge:

The matter before the Court is the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed by Petitioner Mukesh Mehla. (ECF No. 1).

I. BACKGROUND

Petitioner is a native and citizen of India who is currently detained at the Otay Mesa Detention Center. (Petition, Ex. B, ECF No. 1-4 at 3, 8). On June 22, 2019, Petitioner entered the United States near the San Ysidro Port of Entry without inspection. Petitioner was apprehended by the U.S. Border Patrol, transported to the Otay Mesa Detention Center, and placed in expedited removal proceedings. After Petitioner expressed a fear of returning to India because he converted from Hindu to Christianity, Petitioner was referred to a USCIS asylum officer for a credible fear determination.

On August 21, 2019, the asylum officer interviewed Petitioner. The asylum officer determined that Petitioner "is found credible" but did not have a credible fear of persecution. (Id. at 13, 28). The asylum officer determined that "[a]lthough the applicant established a significant possibility of past persecution on account of his religion, there is substantial evidence that the applicant could internally relocate and that it would be reasonable for him to do so."

(Id. at 29). A supervisor approved the asylum officer's determination on August 23, 2019.

On August 26, 2019, Petitioner requested review of the asylum officer's determination by an immigration judge. On August 29, 2019, the Immigration Judge reviewed the asylum officer's determination and interviewed Petitioner. (Petition, Ex. A, ECF No. 1-3 at 2). The Immigration Judge affirmed the determination of the asylum officer that Petitioner did not establish a credible fear of persecution and ordered Petitioner removed. The Immigration Judge determined, "Court finds respondent not credible and affirms on that basis due to de novo review authority and not based on internal relocation finding." (Id. ).

On November 25, 2019, Petitioner filed the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 naming Respondents U.S. Department of Homeland Security; U.S. Customs and Border Protection; U.S. Citizenship and Immigration Services; U.S. Customs and Immigration Enforcement; U.S. Department of Justice; William P. Barr; Chad F. Wolf; Mark Morgan; Kenneth T. Cuccinelli; Carla L. Provost; David M. Radel; Alanna Y. Ow; Melissa M. Maxim; Gregory J. Archambeault; and Fred Figueroa. (ECF No. 1). Petitioner seeks 1) release from custody; 2) an order staying Petitioner's removal and barring his transfer to another detention facility; 3) an order enjoining Respondents from "continuing to apply the Lesson Plans and any related credible fear guidance issued by Respondents on or around April 30, 2019 and September 30, 2019;" 4) an order enjoining Respondents from "removing Petitioner without first providing him with new credible fear screening under correct legal standards or, in the alternative, full immigration court removal proceedings pursuant to 8 U.S.C. § 1229a ; and 5) attorneys' fees and costs. (ECF No. 1 at 41).

On November 25, 2019, Respondents filed a Return. (ECF No. 2).

On November 27, 2019, Petitioner filed a Reply. (ECF No. 4).

The Court heard oral argument on the Petition for Writ of Habeas Corpus on December 2, 2019.

II. CONTENTIONS

Petitioner alleges that habeas relief is warranted because Petitioner's Fourth and Fifth Amendment rights were violated "on account of acts taken by the Respondents in disregard of substantive and procedural due process." (ECF No. 1 ¶ 3). Petitioner alleges that "Respondents' efforts and actions to deport and remove him ... fail to meet the most basic requirements of the Suspension Clause, and thus the determination and removal orders are faulty and without legal force." (Id. ¶ 103). Petitioner alleges that "he is being held, and ordered removed, without having had a ‘meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.’ " (Id. ¶ 3) (quoting Boumediene v. Bush , 553 U.S. 723, 779, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ). Petitioner contends that the Department of Homeland Security has not met its burden to establish that "there is not countrywide persecution" such that it would be reasonable for Petitioner to relocate. (Id. ¶¶ 27-28). Petitioner further alleges that the April 30, 2019, and September 30, 2019, "Lesson Plans" issued by the Trump administration, which provide guidance to asylum officers on credible fear screenings, instruct officers "in a manner that is contrary to the governing statutes and regulations and substantially—and unlawfully—narrows access to the immigration and federal court systems." (Id. ¶¶ 4, 10).

Respondents contend that habeas relief is not warranted. Respondents contend that the Court lacks jurisdiction to review Petitioner's challenge to the "Lesson Plans." Respondents contend that 8 U.S.C. § 1252(e)(3) requires systemic challenges to expedited removal proceedings to be brought in the United States District Court for the District of Columbia. Respondents further contend that Petitioner fails to state a claim upon which relief can be granted because "Petitioner sets forth allegations of what happened before the asylum officer and the IJ, but makes no specific allegations that either of them did anything unconstitutional or otherwise unlawful." (ECF No. 2 at 5).

III. STANDARDS GOVERNING EXPEDITED REMOVAL

Expedited removal procedures are governed by 8 U.S.C. § 1225. Section 1225(a)(1) provides that "[a]n alien present in the United States who has not been admitted or who arrives in the United States ... shall be deemed for purposes of this chapter an applicant for admission." "All aliens ... who are applicants for admission ... shall be inspected by immigration officers." 8 U.S.C. § 1225(a)(3). If the immigration officer determines that the alien is inadmissible under § 1182(a)(6)(C), which applies to aliens who seek admission by fraud or misrepresentation, or § 1182(a)(7), which applies to aliens who lack valid entry documents, the officer "shall order the alien removed from the United States without further hearing or review...." 8 U.S.C. § 1225(b)(1)(A)(i). If, however, the inadmissible alien indicates either an intention to apply for asylum or a fear of persecution, "the officer shall refer the alien for an interview by an asylum officer...." 8 U.S.C. § 1225(b)(1)(A)(ii) ; see 8 C.F.R. § 235.3(b)(4) ("If an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer....").

The asylum officer interviews the alien, reviews material facts, and determines whether the alien has a credible fear of persecution. 8 U.S.C. § 1225(b)(1)(B). A credible fear of persecution means "that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum...." 8 U.S.C. § 1225(b)(1)(B)(v). Eligibility for asylum is governed by 8 U.S.C. § 1158, which provides that the Attorney General has discretion to grant an alien political asylum if the alien is a refugee, a person who is unable to return to his home country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1158(a)(42)(A). "If the officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii). "[I]f the officer determines the alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(B)(iii)(I).

If the asylum officer determines that the alien does not have a credible fear of persecution, the alien may request "prompt review by an immigration judge" of the asylum officer's determination. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). The review "shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection." Id. The asylum officer must:

provide the alien with a written notice of decision and inquire whether the alien wishes to have an immigration judge review the negative decision, using Form I–869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. The alien shall indicate whether he or she desires such review on Form I–869. A refusal by the alien to make such indication shall be considered a request for review.

8 C.F.R. § 208.30(g)(1) ; see also 8 C.F.R. 1208.30(g)(2)(ii) ("The asylum officer's negative decision regarding credible fear shall be subject to review by an immigration judge upon the applicant's request, or upon the applicant's refusal either to request or to decline the review after being given such opportunity....").

The immigration judge reviews the asylum officer's determination de novo. 8 C.F.R. § 1003.42(d)(1). The immigration judge "may receive into evidence any oral or written statement which is material and relevant to any issue in review." 8 C.F.R. § 1003.42(c). The immigration judge determines ...